In case you hadn’t heard, the Supreme Court just had a flurry of action on cases involving LGBTQ rights, providing some insight into the role that newly-appointed Supreme Court Justice Neil Gorsuch will play in future civil rights rulings.
Basically two important things happened this week: 1) The court upheld a lower court decision against the Arkansas government refusing to list both same-sex parents on a child’s birth certificate. 2) The court decided to take up a case involving an anti-gay bakery in Colorado.
Below is a quick explainer about the facts behind each case, how they affect the LGBTQ community and what Gorsuch’s actions in each case say about his stance on LGBTQ issues.
Same-sex parents in Arkansas
On Tuesday, the court ruled 6 to 3 against an Arkansas law forbidding same-sex couples from being listed on a child’s birth certificate. State law had required a child’s birth mother and her husband to be listed on a birth certificate, even when the mother had been artificially inseminated by another man’s sperm. That’s important because it means that Arkansas had long listed a spouse on birth certificates even when the spouse was not a child’s biological parent.
After Terrah Pavens gave birth to a child, Arkansas refused to list Marisa Pavens, her wife, as the child’s parent. The Arkansas Supreme Court said that this was because the state has an interest in recording a child’s biological parentage (which is odd, considering what we just said about Arkansas birth certificates and sperm donors).
But the U.S. Supreme Court ruled that states must give same-sex couples the same rights as opposite-sex couples or else the state would be giving same-sex couples “disparate treatment,” something forbidden under the U.S Supreme Court’s 2015 same-sex ruling.
Gorsuch voted against allowing same-sex couples both to be listed on birth certificates, and we’ll explain why that matters below.
Case of the anti-gay bakery
The case of Masterpiece Cakeshop v. Colorado involves a Denver bakery that refused to make a wedding cake for a same-sex couple based on the baker’s religious beliefs. The baker, Jack Phillips, offer the couple other baked goods, but nothing that specifically acknowledged their same-sex wedding.
Although same-sex marriage was not legal in Colorado at the time, the state still had public accommodation laws requiring businesses to serve customers regardless of sexual orientation.
Basically this case comes down to whether Phillips’ rights under the U.S. Constitution’s First Amendment’s Free Exercise of Religion clause trumps state anti-discrimination protections.
If the court rules in Phillips’ favor, it not only threatens to hollow out the legal rights same-sex married couples won under the Supreme Court’s June 2015 legalization of same-sex marriage, but it could effect a lot of other areas too. It could allow all sorts of businesses to start denying services to LGBTQ people on the basis of “sincerely held religious beliefs,” including pharmaceutical, medical, school, bathroom, locker room and hotel services.
Mississippi has a law that allows businesses to do this and it will undoubtedly find its way to the Supreme Court before too long.
So what did we learn about Gorsuch?
Regarding Gorsuch, legal analyst Ari Ezra Waldman notes that the court waited a year to take up the anti-gay bakery case, apparently waiting for a Republican-appointed justice to bring the court back to its full nine justices (and a more conservative tilt). The court’s conservatives could vote in a block for this case and help destroy same-sex marriage in the process, and there’s good indication that Gorsuch will vote just this way.
As for the case of the Arkansas birth certificates, Gorsuch’s dissent against the Supreme Court’s decision made no sense.
Gorsuch basically said that the female same-sex couple in the case should have challenged the law forbidding sperm donors from being listed on birth certificates. But that doesn’t make any sense because the same-sex couple wasn’t asking for that change, they were simply asking to be listed on birth certificates the heterosexual married couples are. The father gets listed even when the father isn’t the child’s biological parent; the same should hold true for same-sex couples.
By pretending that the Arkansa case is about biological records, Gorsuch is returning to a narrow definition of families based on bloodlines and genetics rather than a more modern and widely understood definition that regards a child’s parents as those caring for the child’s well-being.
Leaving a married couple’s names off of a cild’s birth certificate creates all sorts of problems when that couple tries to enroll in schools, get the child medical care and other arrangements. If Gorsuch had his way, Arkansas child care officials of all sorts would question where the “birth father” (i.e. sperm donor) is, when the child’s same-sex parents are the ones actually raising the child.
So far Gorsuch’s 15 actions on the court have all closely aligned with that of the court’s most conservative member, Justice Clarence Thomas. Seeing as Thomas and the other conservative justices all voted against same-sex marriage back in June 2015, it’s likely Gorsuch will follow to help undo same-sex marriage right.
Gorsuch has voiced support for employer’s religious beliefs sidestepping federal law, has said that LGBTQ rights are part of a liberal agenda, has ruled consistently against transgender rights and is endorsed by anti-LGBT and anti-marriage groups. So he’s not likely to be a friend to LGBTQ people in the courts, just as we’ve always said.
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